EGC: Not possible for the hissing sound from a beverage can to be registered as a trademark

The hissing sound that can be heard when opening a beverage can, followed by a pause and a fizzing sound, cannot be registered as a sound mark. That was the verdict of the General Court (EGC) – a constituent court of the Court of Justice of the European Union – in a ruling from July 7, 2021 (ref.: T-668/19).

While many consumers are no doubt familiar with the hissing sound one hears when opening a beverage can, followed by a brief moment of silence and then a fizzing sound, we at the commercial law firm MTR Rechtsanwälte can report that this sequence of sounds cannot be protected as a trademark. That was the verdict of the General Court, which concluded that there was a lack of distinctive character necessary for trademark registration.

A beverage producer had tried registering this sequence of sounds in audio file format as an EU sound trademark with the European Union Intellectual Property Office (EUIPO). Registration was sought for various different canned beverages, but the application was rejected by the EUIPO due to a lack of distinctive character required for registration as a trademark.

This decision was upheld by the General Court, which first sought to make it clear that the criteria for determining the distinctiveness of sound marks are no different from those that apply to other categories of marks. A sound mark thus needs to have a certain resonance by which consumers can recognize it as a trademark and not merely as a functional element without any intrinsic characteristics of its own. Consumers must be able to establish a link to the mark’s commercial origin from merely perceiving the mark without any connection to other elements, in particular words and images. The Court went on to clarify that in the present case, consumers would have to be able to identify from the hissing and fizzing sounds which manufacturer the canned beverage comes from. According to the EGC, the sound that is produced when a can is opened is to be viewed as a purely technical and functional element and is not an indication of the commercial origin. The Court concluded that there was a lack of sufficient distinctive character.

For a sign to be registered as a trademark, it must possess the necessary distinctive character. Lawyers with experience in the field of trademark law can advise on registering and protecting trademarks.

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